BiH: Letter addresses problem of wartime victims paying court fees

30.11.2017

Civil society organizations protecting human rights in BiH unite to send a letter to relevant stakeholders. In this letter, the human rights defenders urge to find a solution regarding victims of war crimes compelled to pay court fees if their claims are dismissed.

Dear all,

We are addressing you on behalf of civil society organizations protecting human rights of citizens of BiH with a request to address and resolve the burning, systemic issue of charging victims of war crimes in BiH for court fees in ongoing and completed civil proceedings regarding compensation claims.[1]

Recently, the victims of war crimes in BiH have been facing problems when certain courts demand the survivors, who had initiated civil proceedings in order to receive compensation, pay high court fees when their claims are dismissed on statute of limitations grounds.

It is also important to note that different courts have held different views on this issue. Initially, in the Federation of Bosnia and Herzegovina the courts had granted damages to the victims who had initiated the proceedings, in accordance with the official stance of the Supreme Court of Federation of Bosnia and Herzegovina from 2011 stating that statutes of limitations is not applicable on compensation claims. Only in the last two or three years has there been a change in the position of the Constitutional Court of BiH regarding statutes of limitations in lawsuits against the entities/state, which lead to a massive number of dismissed lawsuits and compensation claims before all courts. At the end of 2015, the Code of Civil Procedure of the Federation of BiH was amended allowing the public attorney’s office to charge fees on an attorney’s rate[2], which benefited the FBiH Attorney’s Office as they could start collecting fees.

Considering their vulnerable social status and, usually, very difficult financial situation, a large number of survivors of wartime sexual violence, detainees and other war victims cannot afford to pay even a part of these fees without compromising their and their families’ means of subsistence. As a result, they face executive procedures against them, in the form of confiscation of their movable property or part of their monthly income, if they have any. This further re-traumatizes the victims, who most often already live on the margins of society, making them, as they themselves have said, victims of the system.

After last year’s judgment in the case of Cindric and Beslic v. Croatia before The European Court of Human Rights, involving a similar issue that the applicants (also victims of war crimes) were facing, several judges in BiH, based on the arguments of the said case, started rejecting requests for court fees to be paid by the war victims. The judgment became final in January 2017 and in it the Court decided that, after their compensation claim is dismissed, the victims are not obligated to pay court fees to the state. We believe that the arguments presented by the European Court of Human Rights in this case can similarly be applied to compensation claim cases before the courts in BiH.

Unfortunately, there are few BiH examples of cases where the judgment Cindric and Beslic is applied, which is why the victims who have started civil proceedings are living with a constant fear of the results of the proceedings and the consequences they might have on them and their families.

We have to emphasize that the victims of war crimes were compelled to initiate civil proceedings due to the lack of systemic solutions in providing compensation for incurred damages, that is, due to the authorities’ failure to adopt the appropriate legal framework. Hence, we believe that it is morally unacceptable, after dismissing their claims, to further demand the victims be the ones to pay the enormous amounts to the entities and the state they sued, who are responsible for the great suffering and damage caused to the victims during the war.

There is no justification for this, especially considering the fact that the incurred costs of the entities’ Attorney’s Offices are reimbursed through special budgets, regardless of any additional charge.

Moreover, the Council of Europe’s Commissioner for Human Rights has also expressed deep concern over this problem in his report on Bosnia and Herzegovina published in November 2017[3]. He pointed out that, according to the Amnesty International report, in some cases fees can reach from 6,000 to 10,000 BAM. He recalled the above-mentioned the European Court of Human Rights judgment in which it is stated that “the imposition of a considerable financial burden after the conclusion of proceedings, such as an order to pay fees for the representation of the State according to the “loser pays” rule could well act as a restriction on the right to a court.”

In the light of all of the above, we ask of you to do as much as you can to find or help find a solution to the problem of charging a large number of victims of war crimes for court fees, including adopting appropriate acts relieving them of this obligation.

[1] Notes – the letterwas sent to: the members of the Parliamentary Assembly of BiH, Parliament of FBiH, National Assembly of RS and Assembly of the Brčko District; the Council of Ministers of BiH; the Government of FBiH, the Government of RS; the Government of Brčko District; the Ministry of Justice of BiH; Federal Ministry of Justice; Ministry of Justice of RS; the Judicial Commission of Brčko District; the Ministry of Human Rights and Refugees of BiH; The Institution of Human Rights Ombudsman/Ombudsmen of BiH; Delegation of the European Union to Bosnia and Herzegovina; OSCE Mission to BiH and Office of the High Representative.

[2] Provisions on expenses shall apply to the parties represented by the Public Attorney’s Office. In such cases, the costs of the litigation shall include the amount that could be granted to the party as the remuneration for attorney. (Official Gazette of FBiH, 98/15, as of 23 December 2015)

[3] Report by Nils Muižnieks, Commissioner for Human Rights of the Council of Europe following his visit to Bosnia and Herzegovina from 12 to 16 June 2017, CommDH(2017)28, 07 October 2017, point 35, available at://rm.coe.int/report-following-the-visit-to-bosnia-and-herzegovina-from-12-to-16-jun/16807642b1